Z58 

A7 

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Additional  Statement  on  Behalf  of 
Claims  of  Uninsured  Shipowners 

by 

Cephas  Brainerd 


Additional    Statement 


0^'  BEHALF  OF  CLAIMS  OF 


Uninsured  Shipowners, 


On  the  Geneva  Award,  for  Losses  Occasioned  by 
"  Exculpated  Cruisers," 


By   Cephas  Brainerd. 


NEW  YORK: 
Geo.  F.  Nksbitt  &  Co.,  Piuntkus,  Con.  Pearl  and  Pine  Streets. 

1882. 


I.^S'?- 


STATEMENT. 


I. — The  controversy,  as  considered  by  the  two  Powers 
which  resulted  in  the  Treaty  of  Washington,  and  the 
Tribunal  at  Geneva,  was  a  national  controversy,  and 
not  a  scramble  about  individual  claims. 

The  language  of  the  Treaty  states  this  in  substance 
in  the  VII  Article  which  provides  for  an  award  of  a 
^     gross  sum. 

II. — It  was  not  a  Claims  Convention,  and  the  Tribu- 
\  nal  at  Geneva  did  not  meet  and  did  not  carry  on  its 
"^  ^    business,  as  under  a  Claims  Convention. 

*  I.  There  was  no  hearing  of  evidence — strictly  so  called 

^    — oral  or  documentary. 

2.  There  was  no  hearins:  on  individual  claims. 

3.  There  was  no  appearance  of  individual  claimants. 

4.  There  was  no  decision  on  individual  cases. 

5.  There  was  no  payment  of  individual  claims. 

^t  .     .       . 

The  distinction  between  tiie  two  classes  of  treaties 

SJ  and  proceedings  is  perfectly  obvious.     It  is  pointed  out 

"^  and  illustrated  in  Mr.  Sumner's  Report  on  the  French 

^  Spoliation  Claims.     {ReiwH  Com.  A^o.  41,  38  Con.  1st  Ses. ; 

^  )SuTnner\s  Works,  vol.  7,  p.  204.)     The  methodsof  a  Claims 

^  Convcntifjn    are  also   very   well    shown   in  the   private 

""j*  claims  portion  of  the  Jay  or  "British  Treaty." 


425766 


Here  was  the  submission  to  the  Geneva  Tribunal  of  an 
action  on  the  case  for  neghgence  by  the  United  States 
against  Great  Britain  for  damages,  and  it  was  followed 
by  an  award  of  damages  on  lli.at  cat-e — there  having  been  a 
finding  that  there  was  negligence  as  to  one  cruiser,  that 
was  followed  by  an  award  of  the  "  sum  of  $15,500,000 
in  gold  as  indemnity  to  be  paid  by  Great  Britain  to 
the  United  States,  for  the  sutisfaction  of  all  the  claims 
referred  to  the  consideration  of  the  Tribunal." 

In  other  words,  the  plaintiff  avoided  a  nonsuit  by  es- 
tablishing some  negligence,  and  then  by  virtue  of  the 
declarations  of  the  Treaty,  as  well  as  under  general 
rules,  got  a  verdict  from  the  jury  on  the  whole  case  as 
he  had  disclosed  it  before  them. 

Prior  to  the  actual  hearing,  under  an  opinion  volun- 
teered by  the  Tribunal,  the  plaintiff  had  withdrawn 
certain  so-called  national  claims,  because  he  liked  the 
ruling,  and  thought  it  established  some  law  that  would 
be  useful  to  him  in  the  future. 

III. — Both  governments  understood  the  position  to 
be  as  above  stated.  Mr.  Fish  so  announced  it  in  his 
letter  to  our  counsel.  Our  counsel  so  announced  it  in 
the  forefront  of  their  argument,  saying  :  "  These  claims 
are  all  preferred  by  the  United  States,  as  a  nation, 
against  Great  Britain,  as  a  nation,  and  are  to  be  so  com- 
puted and  paid,  whether  awarded  as  a  sum  in  gross 
under  the  Seventh  Article  of  the  Treaty,  or  awarded  for 
assessment  of  amounts  under  the  Tenth  Article." 

Our  counsel  repeated  this  near  the  close  of  the  hear- 
ings, when  replying  to  a  reference  made  to  the  insurers 
by  Sir  Roundell  Palmer.    They  said  :    *'  So  far  as  Great 


5 

Britain  and  this  Tribunal  are  concerned,  who  the  pri- 
vate sufferers  are,  and  whether  they  are  insured  or  not, 
and  have  been  paid  for  their  insurance,  are  questions  of 
no  importance." 

So  Mr.  Gladstone,  the  Premier,  from  his  place  in  the' 
Commons,  said : 

"  No  claims  of  individuals  have  been  submitted  to  ar- 
bitration in  relation  to  the  '  Alabama,'  What  was  sub- 
mitted to  arbitration  was  entirely  a  question  between 
the  two  Governments." 

Note. — Here  Hes  the  distinction  w^hich,  under  the 
technical  law,  excluded  the  very  technical  claim  of  the 
insurance  companies.  There  is  nothing  to  which  they 
can  apply  the  doctrine  of  subrogation.  If,  as  under  the 
Jay  treat}',  there  had  been  a  distinct  award  for  a  partic- 
ular loss,  and  a  payment  of  a  British  Government  draft 
to  the  insured,  that  insured,  in  the  language  of  Lord 
Hardwicke,  would  have  held  as  "  trustee  for  the  in- 
surer." 

But  here  is  a  general  fund  of  indemnity  from  a  new 
source, — not  from  the  thing  destroyed, — from  no  one 
responsible  to  the  individual  sufferer,  "  a  donation,"  in 
the  language  of  Sir  Thomas  Plumer,  and  so  another 
class  of  cases  apply.  {Campbell  vs.  Mulle'i,  2  S'Uans.  Oiy.^ 
551,613;  De  Bole  vs.  Re<j,  8  Q.  ^.,  217  ;  Rasiomjee  vs. 
Rpij.,  I  Law  R'-p.,  Q.  B.  D.,  487  ;  Same  Case  on  Appeal, 
Feb.,  1877  ;   Burnnud  vs.  RodocanacJd,  44  L.  T.  {N.  S.)  538. 

Nofe  (ifjain. — The  case  last  cited  arose  under  the 
Geneva  Award.  It  was  an  attempt  of  an  insurer,  [)y 
virtue  of  subrogation,  tf)  reach  the  sum  awarded  by 
our  court  of  Ahibama  claims  to  the  insured  owner,  for 


the  value  of  his  ship,  in  exxess  of  the  amount  paid  on  a 
valued  policy  as  for  a  total  loss,  the  precise  claim  regu- 
larly and  logically  asserted  by  the  insurers  here.  The 
court  adopted  the  view  early  expressed  by  Sir  Thomas 
Plumer,  and  held  that  the  payment  was  not  salvage — 
it  was  not  of  the  spes  recuperandi,  "  but  a  gift,"  or,  as  the 
Master  of  Rolls  had  it,  "a  donation  from  a  new  fund." 
{See  especially  opinion  of  Brett^  L.  J.) 

IV. — The  award  was  in  satisfaction  of  all  the  claims, 
but  it  was  founded  on  losses,  {i.  e.,  not  on  the  claim  of 
an  insurance  company  for  insurances.)  Mr.  Davis,  our 
agent,  in  his  report,  says  : 

"  We,  therefore,  devoted  our  energies  towards  secur- 
ing such  a  sum  as  should  be  practically  an  indemnity  to 
the  sufferers.  Whether  we  have  or  have  not  been  suc- 
cessful can  be  determined  only  by  the  final  division  of 
the  sum."  {Papers,  c&c,  vol.  4,  p.  8.)  If  Congress  decides 
to  pay  insurance  companies  as  for  a  total  loss  under 
their  claims  of  subrogation,  the  question  raised  by  Mr. 
Davis  will  be  soon  decided.  The  ''  sufferers  "  now  un- 
recognized will  get  nothing,  and  the  insurance  compa- 
nies, who  are  in  no  sense  "  sufferers,"  will  take,  substan- 
tially, the  whole  fund. 

V. — It  is  not  understood  that  the  insurance  companies 
ever  claimed  as  actual  losers.  When  this  discussion 
began  they  disclaimed  an  appearance  in  that  attitude. 
Mr.  Evarts,  their  leading  counsel,  in  a  brief  filed  in 
1874,  (p.  6),  said:  "The  insurer  does  not  apply  for  a 
share  of  this  indemnity  because  he  lost  money  during 
or   by  reason   of  the  war.     However   that   may  be,  it 


gives  no  interest  in  the  fund.  The  insurer  represents 
the  insured  owner  of  property  destroyed  by  a  cruiser, 
whom  Great  Britain  has  been  adjudged  to  indemnify. 
Whatever  the  fortunes  of  the  insurer  in  other  risks  may 
have  been,  they  cannot  affect  his  representative  rights 
undir  the  Geneva  Award,  to  which  his  assignee  would  have 
heen  entitled.'^  The  itaUcs  are  my  own  Here  is  asserted 
to  the  full,  the  right,  and  only  the  right  of  subrogation, 
but  that  right  in  all  its  length  and  breadth. 

Originally  the  insurance  companies  claim  the  whole 
value  of  ships  and  cargoes  insured  by  them  on  war 
risks — not  the  return  of  the  sum  paid  by  them  on 
account  of  the  risks. 

I.  Under  the  doctrine  of  subrogation, 

"  It  has  long  been  fixed  law,  that  when  the  insurer 
pays  the  full  valuation  "  \i.  e.,  valuation  named  in  the 
policy]  "  he  takes  the  savings  in  any  form  arising  for 
the  share  insured,  and  he  takes  all  the  rights  of  action 
and  claims  for  the  injury  which  occasioned  the  loss. 
He  is  a  mere  purchaser  at  an  agreed  price  for  the  whole 
adventure  " 

Argument  for  Ins.  Cos.  hy  C.  B.  Moore,  p.  25,  1873. 

"  Such  payment  gives  the  insurer  a  complete  title  to 
what  may  afterwards  be  recovered,  in  any  way,  cither 
of  the  property  itself,  or  in  UKjncy  from  parties  who 
have  injured  it,  or  got  the  proceeds." 

Id.,  p.  02. 

"  These  losses  [/.  e.,  on  war  lisks]  were  piomj)!]}-  paid, 
as  the  pnjofs  were  presented,  and  the  usual  assignments 
were  executed  !)}■  the  assured,  on  iccciving  i):i>incnt. 


8 

The  company  was  thus  invested  with  the  legal  rights 
pertaining  to  the  property  destroyed,  and  was  substi- 
tuted in  the  place  of  the  individual  owners."     *     *     * 

PumiMet  ascribed  to    Wm.  H.  II.  Moore ^    V.  P.  of 
Atlantic  Ins.  Co.,  N.  Y.,  p.  6,  1873. 

On  payment  for  a  "  total  loss,"  that  is  the  amount  of 
a  valued  policy,  or  an  agreed  amount  under  an  open 
one  :  "  The  underwriter  acquires  the  absolute  right  to 
every  hope  or  possibility  of  salvage  or  reclamation  from 
or  by  reason  of  the  property,  or  its  destruction  or  in- 
jury." 

Pamphlet  of  G.  A.  Hand,  Counsel  for  Ins.  Cos.,  1876. 

"  The  award  was  for  the  single  value  of  ships  and 
cargoes.  To  whom  it  was  to  be  paid  was  left  to  depend 
on  the  fact  and  the  right.  If  the  owner  was  uninsured, 
it  was  to  be  paid  to  him.  If  the  owner  was  insured, 
but  his  loss  had  not  been  paid  by  the  insurer,  it  was  to 
be  paid  to  him.  If  the  loss  had  been  paid  by  the  in- 
surer, he  therefore  became  the  owner,  and  the  loss  was 
to  be  paid  to  him." 

Pamphlet  of  J.  M.  Van  Cott,  Counsel  for  Ins.   Co. , 
jj.  14,  1876. 

Mr.  Richard  Lathers  says,  in  his  pamphlet  for  insur- 
ance companies,  1878,  p.  3,  referring  to  the  presentation 
of  claims :  "  First  recapitulating  the  names  and  value  of 
each  vessel,  freight  and  cargo,  naming  each  owner  and 
claimant  individually,  whether  interested  as  owner  and 
claimant  individually,  whether  interested  as  owners,  or 
as  subrogated  insurers  of  (lie p) roper ty  destroyed.'^     *     * 


On  the  same  page  he  says,  "  The  direct  losses  claimed 
by  individual  sufferers,  and  the  underivriiers  icho  were  sub- 
rogated to  theni^^  \i.  e.,  to  the  individual  sufferers.] 

2.  Again,  the  insurers  claimed  the  whole  of  such 
values,  irrespective  of  the  sum  paid  by  virtue  of  alleged 
assignments  from  the  original  owners,  which  assign- 
ments the  insurers  exacted  when  the  losses  were  paid. 

Mr.  C.  B.  Moore,  in  the  pamphlet  above  cited,  says, 
(p.  30) :  "And  thereupon  assignments  were  taken,  in' 
many  instances,  by  which  the  owner  of  vessel  or  cargo 
assigned  and  transferred  to  the  insurer  all  right  and 
claim  to  recover  or  receive  from  any  one,  the  property 
insured  or  any  compensation  for  it,  or  claim  for  damag- 
ing or  destroying  it." 

Mr.  W.  H.  H.  Moore  says,  in  his  pamphlet,  (p.  3): 
"  The  usual  assignments  were  executed." 

■    Mr.  Richard  Lathers,   in  his  pamphlet,   (p.  i),  says: 
"  Taking,  as  usual,  an  assignment  of  the  claims." 

3.  The  views  of  the  minority  of  the  Judiciary  Commit- 
tee of  the  House  in  1874,  went  the  whole  length  of  this 
claim  (p.  23). 

•'  The  rijrht  of  the  insurer  in  case  of  abandonment,  to 
succeed  to  every  possible  claim  of  the  assured  upon 
payment  of  the  amount  insured,  not  a  technical  but  a 
natural  right." 

The  same  proposition  was  repeated  by  the  minority 
of  the  same  Committee  in  1876  (p.  7). 

"The  insurer  who  has  paid  the  owner  as  lor  a  total 
loss  is  entitled  to  be  subrogated  to  all  the  rights  of  the 
assured  in  respect  of  the  subject  matter  of  the  insurance." 


lO 


4.  In  1879,  ^^^'-  J-  L^ngdon  Ward,  of  counsel  for  the 
insurance  companies,  (page  14  of  his  pamphlet  of  that 
year),  seems  to  have  modified  the  view  theretofore 
insisted  on,  and  asserted  that  the  insurer  on  "  paying  a 
total  loss,  became  pro  tnnto  the  owner  of  the  insured 
thing  ;  that  is,  if  he  has  insured  one-half  the  value  of  the 
thing,  he  becomes,  on  payment  of  his  insurance,  a  half 
owner  of  the  thing." 

I  think  he  does  not,  in  fact,  mean  to  make  a  change. 

In  the  present  discussion  Mr.  Ward  and  Mr.  Lathers 
only  claim  the  sum  paid  on  policies,  with,  I  suppose, 
proper  interest ;  and  Mr.  Ward  puts  that  claim  on  the 
proposition  that  it  rests  in  the  conscience  and  sense  of 
public  justice  of  Congress  to  recognize  it. 

It  is  proper  to  ask  here  how  long  it  would  take  the 
insurance  claimants,  if  circumstances  favored  them 
before  Congress,  to  fall  back  on  their  original  claim  ? 

And  further:  If  they  had  this  case  in  a  court,  which 
cannot,  as  was  said  by  Mauk,  J.,  in  the  De  Bode  case, 
"  administer  general  justice,"  how  long  it  would  take 
them  to  assert  that  their  claims  on  the  fund  by  virtue 
of  subrogation  and  by  virtue  of  their  assignments 
touched  the  total  value  of  the  insured  thing,  no  matter 
what  the  sum  might  be  that  was  paid  by  them  on  it  as 
for  a  total  loss  ? 

And  finally,  would  Congress  for  one  moment  tolerate 
such  an  enormity  ? 

VI.  I  have  shown  that  the  insurance  companies  cannot 
assert  a  claim  on  this  fund  by  virtue  of  the  doctrine  of 
subrogation. 


II 

They  cannot  claim  as  losers.  I  quote  from  a  pam- 
phlet written  by  Mr.  John  H.  Brower,  an  eminent 
New  York  merchant,  now  deceased,  (p.  5). 

"  The  net  profits  of  the  eight  New  York  companies 
for  the  years  1861-65  on  the  total  amount  of  premiums 
received  amounted  to  2S^j^^^  per  cent.  For  the  same 
eight  companies  the  net  profits  for  the  years  1 866-1 870 
amounted  to  2  5y^^yy-  per  cent.  Thus  the  years  of  the 
war  were  more  favorable  to  these  eight  companies  by 
Stu-oT)  V^^  cent.,  or  $2,295.332yyg-,  after  paying  all  losses, 
war  and  otherwise,  than  the  five  years  of  peace  (1866- 
1870)  which  followed."  Clearly  then  the  insurers  in 
mutual  companies,  in  spite  of  war  losses,  paid  less  for 
their  insurance  during  the  war  than  in  times  of  peace, 
for  they  received  back  a  larger  dividend.  This  larger 
dividend  came  from  the  war  business.  It  cannot  be 
pretended  that  with  all  the  fluctuations  of  business, 
and  the  suspicions  as  to  credit,  that  these  companies 
did  a  larger  marine  risk  business  during  the  war,  than 
subsequent  thereto.  The  war  premium  payers  were 
then  the  only  people  insured  who  suffered  damages,  for 
the  marine  risk  men  got  back  from  the  mutual  compa- 
nies larger  dividends,  therefore  their  insurance  at  a  less 
cost,  than  pri(jr  or  subsequent  to  the  war. 

Congress,  in  tiie  exercise  of  its  high  g(n'crnmcntal 
trusts,  is  not  called  upon  to  give  of  the  Geneva  award, 
to  the  mutual  companies,  to  enable  them,  by  extra 
dividends,  to  reduce  the  marine  premiums  to  nothing 
during  the  war.  It  is  cncnigh  for  marine  risk  payers 
that  they  got  protection  and  indemnity  for  a  less  pro- 
portionate sum   during   the   war  than    bef(jrc   or  since 


12 

that  epoch,  while  all  other  dealers  were  paying  vastly 
enhanced  prices  for  all  they  had.  The  war-premium 
payers  declare  that  they  don't  care  to  have  their  share 
in  the  Geneva  award  paid  to  these  corporations.  So 
Congress,  in  the  exercise  of  its  high  trusts,  can,  without 
prejudice  to  any  public  interest,  safely  dismiss  the  cor- 
porations from  its  halls. 

VII. — Tt  being  clear  that  the  government  holds  this 
fund  as  one  of  indemnity,  and  not  as  a  fund  for  the  pay- 
ment of  special  and  adjudicated  claims,  it  must  hold 
it  just  exactly  as  the  Queen  of  England  held  the  fund 
in  the  Rustoinjee  case.  Said  Mr.  Justice  Strong,  giving 
the  per  curiam  opinion  in  Savings  Bank  v.  U.  S.  {\g  Wall, 
227,239),  "It  may  be  considered  as  settled,  that  so 
much  of  the  royal  prerogatives  as  belong  to  the  king  in 
his  capacity  of  parens  patricp.,  or  universal  trustee,  enters 
as  much  into  our  political  State  as  it  does  into  the  prin- 
ciples of  the  British  constitution." 

A  government  is  undoubtedly  bound  to  protect  its 
citizens  in  their  persons  and  their  property  to  the  extent 
of  its  ability,  both  from  internal  and  external  injuries. 
It  is  bound  to  seek,  by  just  and  feasible  methods,  a  re- 
dress for  such  injuries  ;  if  domestic,  by  a  proper  appli- 
cation of  its  authority  ;  if  foreign,  by  negotiation  in  the 
first  instance,  and  by  force  in  the  second,  if  the  magni- 
tude and  enormity  of  the  aggression  justify  a  resort  to 
arms. 

And  this  duty  of  protection  carries  with  it  the  duty 
of  the  parent  government  to  indemnify  those  it  has 
failed  to  protect,  out  of  its  own  treasury,  in  some 
cases.     {See,  among  otJier,  Dunas  Wheaton^  p.  548,  §  540  ; 


13 

Wliewelts  Grutius  b.  3,  c.  20,  §  7  ;  HimiltoiLS  Life,  hy  Hamil- 
ton, Vol  2,  p.  446  ;  PhiUij)ps  Jurv^prudence,  p.  222-3,  §  241, 
and,  iictahfy,  case  Br/'g.-Gen.  Arimtrong  in  the  Court  of  Claims^ 
reported  as  a  single  case  in  1857.) 

England,  at  least,  once  discharged  this  duty.  The 
American  loyalists,  in  full  reliance  on  the  governmental 
duty  of  protection,  adhered  to  the  cause  of  the  mother 
country  until  they  lost  all,  even  their  homes  :  property 
was  gone,  and  they  could  not  even  abide  in  the  land 
where  they  were  born.  They  appealed  to  the  Crown. 
A  bill  was  drawn  by  Mr.  Pitt,  which  became  law,  under 
which  a  very  large'  sum  was  appropriated  to  satisfy 
these  claims.  It  was  paid  out  on  a  sliding  scale 
designed  to  accomplish  the  laudable  object  of  giving 
the  larger  proportionate  sum  to  those  who  in  losing  all 
had  yet  lost  but  a  small  amount  of  property.  The  re- 
presentatives of  all  parties  united  on  this  bill — Fox, 
Burke,  and  Pitt  for  once  agreed.  {See  ColhelCs  Par. 
Hint,  vol.  27,  pp.  610-619;  vol.  25,  p.  323;  vol.  23,  p. 
1044;  Burkes  Speecliy  vol.  3,  p.  347;  iStal.  at  Large,  vol. 
34,  p.  370  ;  vol.  35,  p.  262,  474,  698  ;  vol.  36,  p.  687.) 

In  that  case  the  money  was  taken  from  the  general 
treasury. 

Here  and  now,  in  the  case  of  the  uninsured  losers  by 
the  so-called  exculpated  cruisers,  we  have : 
(i)  The  duty  of  ])rotection. 

(2)  The  actual  prc^misc  of  protection. 

(3)  The  actual  promise  to  secure  an  indemnity  from 
Great  Britain,  if  possible,  in  case  the  governmental 
promise  and  duty  of  protection  were  not  fulfilled. 

(4)  An  actual  reliance  <;ii  this  duty  and  these  pr(jinises. 


14 

(5)  The  failure  to  fulfill  the  duty  and  promise  of  pro- 
tection 

(6)  The  receipt  from  the  offending  neutral  of  a  sum 
of  money,  as  indemnit}'  for  the  negligence  on  account 
of  which  these  claimants  suffered,  ample  in  amount  to 
pay  every  person,  who  really  fo^i,  almost  in  full  for  such 
actual  losses. 

And  yet  legislators  hesitate ;  they  allow  the  claims  of 
corporations,  that  suffered  no  loss,  to  stand  in  the  way 
of  right  and  duty.  Let  them  take  example  from  the 
British  Parliament,  and  pay  the  sufferers  ;  but  this  time 
out  of  British  money. 

Can  there  be  any  doubt  as  to  what  is  right  and  jus- 
tice ?  Can  there  be  any  doubt  as  to  what  the  "  con- 
science and  sense  of  justice  of  the  sovereign  power " 
should  do  ? 

Judge  Davis,  in  his  speech  in  the  Senate,  in  1879, 
said  that  claimants  for  losses  by  exculpated  cruisers 
had  no  more  claim  on  this  fund  than  had  the  sufferers 
by  John  Morgan's  raids.  No  doubt  he  believes  this. 
But  let  his  proposition  be  tested.  Suppose  that  John 
Morgan,  instead  of  starting  on  his  raid  from  a  Confede- 
rate base,  in  the  Confederate  States,  with  a  genuine 
Confederate  outfit,  had  gone  alone  to  Canada,  had  there 
gathered  a  force  of  Canadians,  had  armed  them  with 
Canadian  arms,  and  the  Canadian  government,  in  spite 
of  warnings  that  raids  were  constantly  plotted  in  Cana- 
da, had  allowed  him  to  escape  with  his  troops  and  de- 
vastate the  Senator's  State.  Suppose,  then.  Great 
Britain  had  made  a  general  payment  on  account  of  all 
raids,  some  excusable,  some  not  excusable,  as  in  the  case 


15 

of  the  Alabama  claims,  and  the  question  of  distribution 
had  arisen,  as  this  has  done  !  How  would  the  learned 
Senator  have  stood  ? 

It  is  very  easy  to  see  the  Senator's  put  case  is  not  on 
all  fours  with  the  real  one.  No ;  after  all  who  really 
suffered  loss  by  the  acts  complained  of  by  the  United 
States  which  resulted  in  the  treaty  of  Washington  are 
fully  paid,  all  sufferers  by  the  war  may  have  a  just  claim 
on  the  indemnity  fund,  and  when  these  latter  are  paid 
in  full,  then,  and  only  then,  will  it  be  right  for  Congress 
to  cover  any  portion  of  the  award  into  the  Treasury. 

VIII. — The  proposed  reference  of  this  whole  matter 
to  the  courts  remains  for  a  single  observation ;  clearly 
it  would  be  unjust  to  refer  the  matter  without  accom- 
panying that  reference  with  a  declaration  that  the  courts 
selected  or  created  for  the  purposes  of  the  case  so  re- 
ferred, stand  in  the  place  of  Congress,  and  act  under  its 
(Congress's)  "  conscience  and  sense  of  justice,"  else  the 
court  will  say  as  a  member  of  this  committee  suggested 
on  the  hearing,  "  This  court  cannot  create  or  settle 
great  governmental  principles,  or  discharge  great  gov- 
ernmental trusts,  as  can  Congress,  therefore  Congress 
meant  to  have  the  rules  of  technical  law  ai)i)licd  to  the 
case."  Where  would  tiie  fund,  and  where  would  the 
claimants,  and  where  would  llic  govt  rnnicnl  be  in  such 
a  case?  The  court  could  not  dismiss  the  case  so  refer- 
red to  it  fn;m  its  docket,  or  turn  the  plaintiff  out  of 
C(nirt.  It  might  feel  as  Lord  Eldon  expressed  himself 
in  VuUiannj  vs.  Noble,  (3  Aferivale,  437, 452) :  "  'I'his  is  a  i)ill, 
by  creditors  seeking  relief  due  to  them  under  every  con- 


4*^5?G(i 


THE  UNIVERSITY  LIBRARY 
This  book  is  DUE  on  the  last  date  stamped  below 


^^^^ 


2^\<^^1 


MAY  101962 

JUNl   1962 


Form  L-9 
25in -2,  •43(5205) 


UNIVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 


JL. 


Rrainerd   - 


238       Additional   state- 

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